Tuesday, May 3, 2016

Post-Employment Retaliation: Being Right For All The Wrong Reasons

Retaliation is the most frequently alleged basis of
discrimination in the federal sector and the most common discrimination finding
in federal sector cases. Of all U.S.
Equal Employment Opportunity Commission (EEOC) charges filed in fiscal year
2015, 44.5% asserted retaliation claims—a percentage that has nearly doubled
over the last 20 years. But how far does
Title VII’s anti-retaliation provision reach?
The answer: pretty far, according
to two U.S. Supreme Court cases, which greatly expanded who and what is
protected under Title VII’s anti-retaliation provision.

First, in 1997, the Supreme Court held in Robinson v. Shell Oil Co. that the term “employees” in Title VII’s anti-retaliation provision
extends to former employees. In choosing
to read the anti-retaliation provision broadly, the Supreme Court noted that exclusion
of former employees from protection would “undermine Title VII’s effectiveness
by allowing the threat of post-employment retaliation to deter victims of
discrimination from complaining to the EEOC, and would provide a perverse
incentive for employers to fire employees who might bring Title VII
claims.” Id. at 338. Following Robinson, the EEOC
fully recognizes that “[f]ormer employees . . . have standing to bring a claim
for actions which occurred post-employment and are alleged to be in retaliation
for protected activity engaged in while an employee.”

Second, in 2006, the Supreme Court held in Burlington Northern & Santa Fe Railway Co. v. White that Title VII’s anti-retaliation
provision covers any employer action that would be “materially adverse” to a
reasonable employee or applicant (i.e., any action that might “dissuade[] a
reasonable worker from making or supporting a charge of discrimination.”). Thus, unlike the substantive
anti-discrimination provision, unlawful employment practices under the
anti-retaliation provision are not limited to only those affecting an
employee’s “compensation, terms, conditions, or privileges of employment.”

Applying these principles, “courts have routinely held that
filing a meritless lawsuit or counterclaim against a former employee can form
the basis of a retaliation claim.” The
Supreme Court’s liberal interpretation of Title VII’s anti-retaliation
provision in Burlington Northern, however, pushes these principles one step
further: any nontrivial action that is
likely to dissuade a reasonable worker from engaging in protected conduct can
likewise form the basis of a retaliation suit.
For example, the D.C. Court of Appeals in Young & Co. v. Sutherlandheld that the anti-retaliation statute of the D.C. Human Rights Act, analogous
to the anti-retaliation provision of Title VII, “contains no safe harbor for
otherwise lawful acts done for an improper retaliatory purpose.” In that case, the employer took legal action
to foreclose on its former employee’s property, which served as collateral for
a loan to the employee, after the employee asserted a gender discrimination
complaint against the employer. In
discrimination cases, courts continue to hold that “the fact that the employer
may have a valid claim does not preclude the employee from establishing that
the employer’s motive in asserting the claim was impermissible
retaliation.” Id. at 368. These holdings demonstrate
the far-reaching protections guaranteed by state and federal anti-retaliation
statutes—long after an employee leaves the company; to which truth is not
always a defense.

On April 26, 2016, the Supreme Court took the opportunity to
reaffirm the breadth of anti-retaliation statutes in Heffernan v. City of Paterson. Here, petitioner, a police
officer, was demoted on the mistaken belief that he had engaged in protected
speech. Specifically, that he had
supported for mayor a candidate opposing the incumbent mayor. The City’s defense was that the mayor had not
engaged in illegal conduct, because—in fact—the officer was not engaged
politically. The Court emphasized that
it is “the employer’s motive, and in particular the facts as the employer
reasonably understood them,” that matters. Id. at 5. Justice Breyer, writing for the majority, recognized that “a discharge
or demotion based upon an employer’s belief that the employee has engaged in
protected activity can cause the same kind, and degree, of constitutional harm
whether that belief does or does not rest upon a factual mistake;” namely,
“discouraging employees—both the employee discharged (or demoted) and his or
her colleagues—from engaging in protected activities.” Id. at 6-7.

In the ADA Amendments Act of 2008 (an Act of Congress,
effective January 1, 2009, that amended the Americans with Disabilities Act of
1990 (ADA)), Congress articulated this principle in the statute itself. Not only can an employer discriminate against
a qualified employee or applicant who is disabled, but it is a violation of the
ADA to discriminate against an employee or applicant the employer believes is
disabled, even if he or she is not. It
is the intent of the employer, rather than the status of the claimant, which
controls.

The reach of Title VII’s anti-retaliation provision has yet
to be restricted by the courts—employer liability for retaliation does not end
when the employee leaves the company and is not relieved because the employer’s
action is based on verifiable facts. The
latter provides the fullest protection to former employees: the focus is not on the former employee’s
activity, but is instead on the employer’s “reasons for acting, accounting for
what officials believed to be the facts and their motive in response to those
perceived facts.” Thus, employers must
ensure that former employees who have engaged in protected activities are
treated the same as former employees who have not.